Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 346
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 346
File number(s): SYG 1280 of 2020 Judgment of: JUDGE STREET Date of judgment: 12 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination Permanent (Subclass 187) Visas – where the applicants failed to appear at the hearing before the Court – application in a case for reinstatement – no satisfactory reason given for the applicant’s failure to appear – no utility in reinstating proceedings – application for reinstatement dismissed Legislation: Migration Act 1958 (Cth) ss 359AA, 476 Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 12 November 2021 Place: Sydney Solicitor for the applicant: First applicant, in person Solicitor for the first respondent: Ms Qi Qi Ren ORDERS
SYG 1280 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAFIQUL HASAN
First Applicant
SHAHANAJ PARVIN NIPA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application in a case filed on 26 August 2021 is dismissed.
2.The applicants pay the first respondent’s further costs fixed in the amount of $800.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made orally on 5 May 2020 and reduced to writing on 8 May 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Regional Employer Nomination Permanent (Subclass 187) Visas (“the Visa/s”).
The first applicant is the primary applicant and husband of the second applicant, who is included as member of a family unit. The application for the Visas was dependent upon the first applicant having an approved nomination.
On 4 September 2018, the delegate found that the first applicant failed to meet the criteria for the grant of the Visa.
Before the Tribunal
On 18 September 2018, the applicants applied to the Tribunal for review. On 16 April 2020, the Tribunal wrote to the applicant and invited the applicants to attend a hearing on 5 May 2020. The first applicant responded to the invitation and attended the hearing to give evidence and present arguments.
The Tribunal identified that the first applicant did not have an approved nomination, which was an essential criteria for the applicants to success in respect of the Visa application. The Tribunal identified that the applicants did not meet any other criteria in respect of the Visa and affirmed the decision of the delegate under review.
Before the Court
These proceedings were commenced on 26 May 2020. On 17 August 2021, this Court dismissed the application on the basis that the applicant had failed to appear. On 26 August 2021, the first applicant filed an application in a case for reinstatement.
In support of the application in a case for reinstatement, the first applicant explained that he felt sick and had to rush to hospital emergency, and that was his explanation for his failure to attend. The applicant attached a certificate that identified that he was unfit for work, dated 17 August 2021.
The certificate simply asserts that the applicant is suffering from a medical condition. The applicant’s affidavit does not identify that condition. The first respondent submits that the explanation in respect of the failure to appear is not satisfactory. Being unfit for work is not a basis upon which it is apparent that the first applicant was unable to communicate with the Court or participate by video or telephone link at a hearing.
In all the circumstances, the Court accepts the first respondent’s submission that the explanation for the failure to appear is unsatisfactory. However, the more significant issue in the present case is the utility of reinstating the proceedings. In that regard, at the commencement of the hearing, the Court explained to the first applicant the nature of the hearing. The applicant confirmed he understood the nature of the hearing as explained by the Court.
The first applicant sought to raise six issues in relation to which he alleged that there was a reasonable argument of relevant error by the Tribunal. The first ground was that he contended there was an error of law and that he had been denied procedural fairness. That assertion, made orally, did not identify any basis upon which it could be said that there was an arguable error of law, or any basis upon which it could be said that the Tribunal failed to comply with its statutory obligations or the requirements of procedural fairness in the conduct of the review. No arguable case is raised by that ground in respect to the applicant.
The first applicant then referred to a number of provisions of the Act, including s 359AA. There is no information in the present case of a kind that enlivened any obligation upon the Tribunal under s 359AA of the Act. In the absence of an approved nomination, the applicants could not succeed as that was a mandatory and essential criteria for the applicants in the circumstances of the present case. The reference to the statutory provisions by the first applicant does not identify an arguable case of relevant error by the Tribunal.
The applicant then suggested that the Tribunal had been preoccupied, which the Court takes as an allegation of bias. There is nothing on the face of the material to suggest that the Tribunal did other than approach the hearing with an open mind, reasonably capable of persuasion as to the merits. Further, the adverse finding in circumstances where the first applicant did not have an approved nomination is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the matter on its merits. No arguable case of bias or actual bias is made out. The assertion of preoccupation by the Tribunal is unsupported and does not identify any arguable case of error.
The fourth oral ground raised by the first applicant related to the circumstances of COVID-19. Neither the Tribunal nor this Court has a power to determine the matter on compassionate or discretionary grounds. The COVID-19 pandemic does not give rise to a basis upon which it could be said that the Tribunal’s decision is the subject of an arguable error.
The fifth ground raised orally by the first applicant is the assertion that the Tribunal’s reasons were inadequate and did not explain to him the basis of the decision. Whilst the reasons are concise, they clearly identify that the first applicant did not have an approved nomination, which was an essential criteria for him to succeed, and the same issue that he had encountered before the delegate. In those circumstances, the Tribunal’s reasons are both adequate and sufficient to explain to the first applicant the reasons for the decision made. The reasons given were also sufficient for the purpose of the Tribunal’s obligation to give reasons under the Act. No arguable case for relevant error arises by reason of ground five.
Ground six raised orally appears to be a repetition of the first applicant’s assertions in relation to the ground one, and is a generalised assertion of a denial of natural justice. The first applicant was given the opportunity to attend a hearing. The applicant was on notice of the need for an approved nomination as a result of the delegate’s decision.
The first applicant suggested that he could go off and obtain a fresh nomination. The applicant is not able to do so. It is only the nomination that was the subject of the application of the Visa which is one upon which the first applicant was destined to either fail or succeed. The first applicant cannot present a fresh new nomination so as to give rise to meeting that essential jurisdictional requirement. In the circumstances of this case, there was no denial of natural justice by the Tribunal. No arguable case for relevant error is raised by anything said by the applicant orally.
The Ground
The Ground in the originating application is as follows:
1.The AAT has failed to determine my application in accordance with the law, resulting in unfairness to me.
Without particulars, this Ground is incapable of identify any arguable error. As the Court has explained, in circumstances where the first applicant did not have an approved nomination, the applicants could not succeed.
The Tribunal correctly identified the relevant law and, in the circumstances where the applicant did not have an approved nomination, made the correct or preferable decision. The assertion of unfairness by the first applicant in the Ground in the originating application is not consistent with the applicants, in fact, being invited to and attending a hearing before the Tribunal.
In circumstances where it is apparent that the applicant’s application to the Tribunal was doomed to fail, on the face of the material before the Court, the first applicant had a real and meaningful hearing before the Tribunal. No arguable case for relevant error is disclosed by the limb of the Ground in the originating application.
On the face of the material before the Court, the Tribunal correctly identified the relevant law. As the application in a case does not identify any arguable ground of error, and as none of the six grounds raised orally by the first applicant identify any arguable error before this Court, there would be no utility in reinstating the proceedings, even if the Court accepted the applicant’s explanation as being satisfactory for his failure to appear.
The Court finds that there would be no utility in reinstating these proceedings and, taking into account the inadequate explanation, is satisfied that this is a matter in which the application in a case must be dismissed. Accordingly, the application in a case for reinstatement is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 November 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 8 March 2022
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